Seems simple, right? Well, there’s a bit more to codicils than meets the eye.
If you’re serving as the executor or executrix of an estate or just beginning to learn about the probate process, you’re likely familiarizing yourself with the terms commonly used in estate settlement. Wills, bequests, beneficiaries, heirs, letters testamentary—you’re probably hearing words that are both familiar and unfamiliar.
Another word—codicil—is a term that you’ve likely encountered before. But if you’re like most executors, you probably don’t understand the complexity of codicils.
Let’s take an in-depth look at codicils to learn more.
As noted above, a codicil is a legal document that serves to change the will in some way. That change can take many different shapes, so a codicil is not a “one-size-fits all” document.
Although all codicils are slightly different depending on the testator’s circumstances, there are six characteristics of codicils that will never change:
Let’s take a look at some of those details in more depth.
Whether or not an individual passed away testate or intestate has a significant impact on the probate process.
If an individual passed away testate—with a will—then the appointment of an executor, distribution of assets, and entire estate settlement process will be determined by the will.
If an individual passed away intestate—without a will—then the probate court will choose an executor. The court will also determine the distribution of assets and make decisions on the entire estate settlement process with no written guidance from the deceased individual.
Atticus Advice: No one ever plans to die. That seems obvious, right? But dying without a will can have disastrous consequences on the distribution of assets after your death. Without a will, you have no control over who gets what after you pass away. That’s why creating a will should be the top priority as you plan out your estate’s future. But. people pass away without a will all the time, and if you find yourself in that situation, you should read: What Happens When Someone Dies Without a Will
It might seem obvious to say that a codicil must be written after the will—after all, the codicil’s purpose is to change the will in some way, so you couldn’t really have a codicil without first having a will.
But what’s important to understand in this point is that a codicil should never be intended to replace the will. Yes, a codicil might nullify the will—we’ll get to that in more detail later—but creating a codicil is not the same as creating a new will.
This point can be further understood by examining the history of the word “codicil.” The word itself comes from the Latin word “codicillus,” which literally means “a short booklet” or a “short writing.”
A codicil is the addendum to the will; the codicil is not intended to serve as a replacement to the will.
For a codicil to be valid, it must be written by the same individual that created the will.
If another individual—and not the original testator—tries to create a codicil to the original testator’s will, then the codicil will not stand in court. The will and codicil must both be created by the same individual for the codicil to be valid.
There are certain estate planning tools that technically come into creation after the estate owner’s death. Some trust accounts—a totten trust, for example—pass assets to a beneficiary after the trust grantor’s passing.
A codicil cannot be created, altered, or changed after the testator’s death. The testator must be the one to create the codicil; the executor cannot create a codicil on behalf of the testator’s estate after the testator’s death.
One of the most interesting aspects of codicils is that a testator can create any number of codicils during his or her lifetime.
Let’s suppose that a testator creates a will, but then the testator’s circumstances change. What should the testator do? Create a codicil.
But what if the testator’s circumstances change again? Well, the testator can create another codicil.
Although the number of codicils that an individual can write is unlimited, there might come a point when it’s more practical to just scrap the old will and create a new one, rather than add another codicil onto the current will.
The distinction between needing to create a codicil and needing to write a new will can be blurry, but we’ll get to that later. What’s important to understand here is that an individual can technically write an unlimited amount of codicils if they choose to do so.
If you’ve ever seen a Hollywood film that includes a large inheritance or the death of a family patriarch, you’re probably familiar with the concept of will contests.
A will contest occurs when an interested party disputes the validity of the will in court.
We’ve covered the topic of will contests b, so we won’t get into the nitty-gritty of these dramatic details. But just as interested parties can dispute the validity of the will, interested parties can also dispute the validity of a codicil.
Why might an interested party choose to dispute the validity of a codicil? Well, their two primary arguments will likely either be lack of capacity or undue influence.
Lack of capacity is the idea that the testator was not of sound mind at the time of the will’s creation. The testator lacked the mental capacity to know what they were signing or understand the significance of the document.
Undue influence is the claim that a testator was pressured into drafting or amending their will to benefit specific individuals. Unfortunately, this can be a common occurrence when the testator is a vulnerable individual or if a power imbalance exists where a beneficiary holds control over the testator.
Now that we’ve taken a look at the six characteristics common to all codicils, let’s ask the question: why would you create a codicil?
We know that a codicil is created when the testator wants to change the will in some way. But what specific circumstances would prompt a testator to draft a codicil?
Here are some of the common reasons why codicils are created:
Let’s take a look at that list in a bit more detail.
Choosing an executor can be a difficult process. We get it—how many people are there that you would choose to oversee all of your assets and your entire legacy when you die? Probably not many, regardless of how many friends you have.
An executor holds quite a bit of power after you pass away. Yes, there are limitations on the executor’s power, but a poor executor could easily create a complete mess.
Perhaps you’ve written a will that names a close friend as the executor of your estate. But then, after you’ve written the will, you decide that you need to change the executor of your estate.
Creating a codicil would be the right move.
There are a number of reasons why you might choose to change the beneficiaries listed in your will.
Births, deaths, family feuds—believe us, it’s all happened before. When situations change, you might choose to add or remove certain named beneficiaries from your will.
Creating a codicil would allow you to revise the will in such a way to change the beneficiaries that you had originally listed.
In the drafting of a will, it is common to name specific assets that you intend to distribute to beneficiaries. Those assets will later be included in your estate inventory and will be shown to the probate court.
But assets do not last forever, and you likely won’t hold the same assets for your entire life. You’ll move houses, sell the boat, buy a bigger boat, buy and sell cars, remember that old baseball card collection you once stored in the attic, and everything in between.
When significant assets change, you’ll likely want to update your will to include those assets. A codicil is a great way to reflect those asset changes.
If codicils are reflective of any human characteristic, it’s that humans often change their minds.
We get it—maybe you originally intended to be cremated but then decided that you want a traditional casket burial. Maybe you planned an elaborate funeral service but then decided that you prefer a simple memorial service.
Whatever the case, a codicil can reflect any new modifications when it comes to planning your own end of life wishes.
Now that we’ve covered some of the specific changes that would be included in a codicil, let’s focus on the next step—the actual creation of the document.
The creation of a codicil mirrors the creation of a will almost perfectly.
A codicil should be in writing and must include the following details:
And that’s it! Just like that, you’ve created a codicil.
As with a will, your declaration of being in sound mind is a confirmation that you possess mental capacity to create a codicil. Remember the lack of capacity that we discussed when referencing the will contests? This section prevents any claims being made against the codicil.
For the codicil to be valid, you must have two witnesses present when you sign the document. These witnesses cannot be interested parties, meaning that they cannot stand to materially gain or lose from the creation of the codicil.
After creating the codicil, you will want to store the document with the original copy of the will in a safe location.
You might be tempted to put the document in a safe deposit box, but you should choose a personal safe or an attorney’s office instead.
Although safe deposit boxes are great tools for storing certain items and valuables, safe deposit boxes should never be used to store wills or codicils.
Atticus Advice: Storing a will or codicil in a safe deposit box could potentially delay the entire probate process and have disastrous consequences. Safe deposit boxes are usually “sealed” after the original renter’s death, meaning that the executor of the estate will need to receive a court order granting permission to access the box. To obtain the court order, however, the executor will need to prove that the testator named them as the executor. This creates a catch-22 and can lead to an administrative nightmare. To learn more about this situation, check out: 11 Items to Never Put in a Safe Deposit Box.
Let’s say that you’ve encountered some major life changes after creating a will. You have a new granddaughter, you bought a new house, and you would like to change executors.
It brings us back to the blurred question we asked earlier: should you create a codicil or just go ahead and create a new will?
As with many estate planning questions, the answer isn’t so simple.
Whether you should draft a codicil or create a new ultimately depends on your personal circumstances.
If the life change is a simple alteration that could easily be addressed in less than a few paragraphs, then a codicil is likely suitable.
If you have multiple life changes that cannot be addressed with a few paragraphs, you will likely be better off by creating a new will.
Why does this matter? Well, the worst thing you can do is draft a codicil and accidentally nullify or revoke the original will.
Does that happen? Yes, it certainly does.
In some cases where individuals have attempted to make lengthy codicils, they have erroneously created a document that conflicts with the original intent of the will. This can create headaches in probate and delay the entire probate process as a whole.
When determining whether you should write a codicil or create a new will, you have to examine the complexity or your personal circumstances. If your personal changes are not too complicated, then a codicil is an efficient alternative to the difficult process of creating an entirely new will.